EXHIBIT 4.2
TRUST SUPPLEMENT NO. 2003-1G
Dated as of January 30, 2003
between
DELTA AIR LINES, INC.
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
To
PASS THROUGH TRUST AGREEMENT
Dated as of November 16, 2000
Delta Air Lines Pass Through Trust 2003-1G
Delta Air Lines Pass Through Certificates,
Series 2003-1G
TRUST SUPPLEMENT NO. 2003-1G
This TRUST SUPPLEMENT NO. 2003-1G, dated as of January 30, 2003 (the
"Trust Supplement"), between DELTA AIR LINES, INC., a Delaware corporation (the
"Company" or "Delta"), and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, as successor trustee (the "Trustee") under the Pass Through
Trust Agreement, dated as of November 16, 2000, between the Company and State
Street Bank and Trust Company of Connecticut, National Association (the "Basic
Agreement").
WITNESSETH:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate
face amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, Delta is the owner of the 12 aircraft described in Schedule II
(the "Aircraft");
WHEREAS, pursuant to each Indenture, Delta will issue on a recourse
basis three series of Equipment Notes secured by the related Aircraft;
WHEREAS, the Trustee shall hereby declare the creation of the Class G
Trust (as defined below) for the benefit of Holders of the Class G Certificates
(as defined below) to be issued in respect of such Class G Trust, and the
initial Holders of the Class G Certificates, as grantors of such Class G Trust,
by their respective acceptances of the Class G Certificates, shall join in the
creation of the Class G Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Class G Trust will
evidence Fractional Undivided Interests in the Class G Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement,
as supplemented by this Trust Supplement and the Participation Agreements, the
Trustee on behalf of the Class G Trust shall purchase the Equipment Notes issued
by the Company pursuant to the Indentures having the identical interest rate as,
and final maturity dates not later than the final Regular Distribution Date of,
the Class G Certificates issued hereunder and shall hold such Equipment Notes in
trust for the benefit of the Class G Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(h) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make this
Trust Supplement, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed,
have been done, performed and fulfilled, and the execution and delivery of this
Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, upon the occurrence of a Registration Event, the Basic
Agreement, as supplemented by this Trust Supplement, shall become subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement referred to herein, the Indentures, the
Registration Rights Agreement or the Reference Agency Agreement. As used herein,
the term "Agreement" shall mean the Basic Agreement, as supplemented by this
Trust Supplement.
Section 1.02 Amended Definitions. For purposes of the Class G Trust,
the definitions of the following capitalized terms as specified heretofore in
Section 1.01 of the Basic Agreement shall be amended to read as follows:
"Pool Balance": means, with respect to the Class G Certificates as of
any date, (i) the original aggregate face amount of the Class G Certificates
less (ii) the aggregate amount of all distributions made in respect of the Class
G Certificates other than distributions made in respect of interest, Break
Amount or Make-Whole Amount or reimbursement of any costs or expenses incurred
in connection therewith. The Pool Balance as of any Regular Distribution Date or
Special Distribution Date shall be computed after giving effect to the payment
of principal, if any, on the Series G Equipment Notes or other Trust Property
held in the Class G Trust and the distribution thereof to be made on such date
and payments under the Policy made for the benefit of the Class G
Certificateholders (other than in respect of the Primary Liquidity Facility and
interest on the Class G Certificates)."
"Trust Property": means, with respect to the Class G Trust, (i) subject
to the Intercreditor Agreement, the Series G Equipment Notes held as the
property of the Class G Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to time deposited
in the Certificate Account and the Special Payments Account, each for the Class
G Trust, and, subject to the Intercreditor Agreement, any proceeds from the sale
by the Trustee pursuant to Article VI of the Basic Agreement of any Series G
Equipment Note referred to in (i) above, (iii) all rights of the Class G Trust
and the Trustee, on behalf of the Class G Trust, under the Primary Liquidity
Facility or Above-Cap Liquidity Facility (collectively, the "Liquidity
Facilities") or the Intercreditor Agreement, including, without limitation, all
rights to receive all monies and other property payable thereunder, (iv) all
monies or other property receivable under the Intercreditor Agreement and the
Liquidity
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Facilities and (v) all monies or other property payable to the Trustee on behalf
of the Class G Trust pursuant to the Policy."
ARTICLE II
DECLARATION OF TRUST
Section 2.01 Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "Delta Air Lines Pass Through Trust 2003-1G"
(the "Class G Trust"), for the benefit of the Holders of the Class G
Certificates to be issued in respect of such Class G Trust, and the initial
Holders of the Class G Certificates, as grantors of such Class G Trust, by their
respective acceptances of the Class G Certificates, join in the creation of such
Class G Trust with the Trustee. The Trustee, by the execution and delivery of
this Trust Supplement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 2.02 of
the Basic Agreement and the Participation Agreements and the Trustee will hold
such right, title and interest for the benefit of all present and future Holders
of the Class G Certificates, upon the trusts set forth in the Basic Agreement
and this Trust Supplement.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "Delta Air Lines
Pass Through Certificates, Series 2003-1G" (the "Initial Certificates"). The
exchange certificates which may be issued and offered in exchange for the
Initial Certificates pursuant to the Registration Rights Agreement shall be
known as the "Delta Air Lines Exchange Pass Through Certificates, Series
2003-1G" (the "Exchange Certificates"). The Initial Certificates and the
Exchange Certificates are hereinafter defined as the "Class G Certificates".
Each Class G Certificate represents a Fractional Undivided Interest in the Class
G Trust created hereby. The Class G Certificates shall be the only instruments
evidencing a Fractional Undivided Interest in the Class G Trust.
The terms and conditions applicable to the Class G Certificates and the
Class G Trust are as follows:
(a) The aggregate face amount of the Class G Certificates that may be
authenticated and delivered under this Agreement (except for Class G
Certificates authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Class G Certificates pursuant to
Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is $391,583,000.
(b) The Cut-off Date is February 28, 2003.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means January 25, April 25, July 25 and October 25 of
each year, commencing
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on April 25, 2003, until payment of all of the Scheduled Payments to be
made under the Equipment Notes has been made. The principal amount of the
Equipment Notes to be held by the Class G Trust is scheduled for payment on
January 25, April 25, July 25 and October 25 in certain years, commencing
on April 25, 2003 and ending on January 25, 2008 as set out in Schedules
I-A and I-B. Notwithstanding the provisions of Section 12.11 of the Basic
Agreement, if a Regular Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day and
interest shall accrue during the intervening period.
(d) The Special Distribution Dates with respect to the Class G
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) The Class G Certificates shall be in the form attached hereto as
Exhibit A, shall be Book-Entry Certificates (subject to Section 4.01(d) of
this Trust Supplement), and shall be subject to the conditions set forth in
the Letter of Representations between the Company and The Depository Trust
Company and any successor agency thereto ("DTC"), as initial Clearing
Agency, attached hereto as Exhibit D.
(f) The proceeds of the Class G Certificates issued by the Class G
Trust shall be used to acquire the Equipment Notes described in Schedule
II, which Equipment Notes relate to the Aircraft described in Schedule II
and the Note Documents described in Schedule III.
(g) Any Person acquiring or accepting a Class G Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of a Plan or any trust established with respect
to a Plan, have been used to purchase Class G Certificates or an interest
therein or (ii) the purchase and holding of Class G Certificates or
interests therein by such Person is exempt from the prohibited transaction
restrictions of ERISA and the Code or materially similar provisions of
Similar Law pursuant to one or more prohibited transaction statutory or
administrative exemptions.
"Plan" means a retirement plan or other employee benefit plan or
arrangement, including for this purpose an individual retirement account,
annuity or Xxxxx plan, that is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986 (the "Code"), or such a plan or
arrangement which is a foreign, church or governmental plan or arrangement
exempt from Title I of ERISA and Section 4975 of the Code but subject to a
foreign, federal, state, or local law which is substantially similar to the
provisions of Title I of ERISA or Section 4975 of the Code (each, a
"Similar Law").
(h) The Class G Certificates will be subject to the following
Intercreditor Agreement (and to the extent the terms thereof (including the
definitions of defined terms) are inconsistent with the terms of this
Agreement, such Intercreditor Agreement shall control): that certain
Intercreditor Agreement, dated as of the date hereof, among U.S. Bank Trust
National Association, as Trustee under each Trust (as defined therein),
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Ambac Assurance Corporation, as the Policy Provider, Landesbank
Baden-Wurttemberg, as the Primary Liquidity Provider, Xxxxxxx Xxxxx Capital
Services, Inc., as the Above-Cap Liquidity Provider, and U.S. Bank Trust
National Association, as Subordination Agent thereunder. Potential
Purchasers shall have the rights upon the occurrence of a Triggering Event
set forth in Article VII hereof. The Trustee and, by acceptance of any
Class G Certificate, each Certificateholder thereof, agrees to be bound by
all of the provisions of the Intercreditor Agreement, including the
subordination provisions of Section 9.09 thereof.
(i) The Class G Certificates will have the benefit of the following
Primary Liquidity Facility: that certain Revolving Credit Agreement, dated
as of the date hereof, between U.S. Bank Trust National Association, as
Subordination Agent under the Intercreditor Agreement, as agent and trustee
for the Class G Trust, and the Primary Liquidity Provider.
(j) The Class G Certificates will have the benefit of the following
Above-Cap Liquidity Facility: that certain ISDA Master Agreement, dated as
of the date hereof, between the Subordination Agent, as agent of the
Trustee, and the Above-Cap Liquidity Provider, together with the schedule
and confirmation thereto relating to the Class G Certificates.
(k) Payments of interest on the Class G Certificates when due and
payment of the outstanding balance on the Class G Certificates on the Final
Legal Distribution Date for the Class G Certificates and under certain
other circumstances will be supported by a certificate guaranty insurance
policy to be issued by the Policy Provider under the Policy Provider
Agreement, such policy, together with any policy issued in replacement
thereof pursuant to the Intercreditor Agreement, in each case as amended,
supplemented or otherwise modified from time to time in accordance with
their respective terms, being the "Policy."
(l) Subject to Section 2.02(b) of the Basic Agreement, there will not
be any deposit agreement, escrow agreement or other similar arrangement
prior to delivery of the Aircraft.
(m) The Responsible Party is the Company.
Section 3.02 Delivery of Documents. The Trustee is hereby directed (i)
to execute and deliver the Intercreditor Agreement, the Policy Provider
Agreement and each Participation Agreement, each in the form delivered to the
Trustee by the Company and (ii) subject to the respective terms thereof, to
perform its obligations thereunder.
Section 3.03 Policy Provider Agreement. For purposes of this Trust
Supplement, the representations and warranties of the Trustee set forth in
Section 7.15(b), (c), (d) and (e) of the Basic Agreement shall be amended by
adding the phrase "the Policy Provider Agreement" after each reference to
"Intercreditor Agreement" therein.
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ARTICLE IV
ISSUANCE AND TRANSFER OF THE CLASS G CERTIFICATES
Section 4.01 Issuance of Class G Certificates. (a) The Initial
Certificates will be issued in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof. The Exchange Certificates will be issued
in denominations of $1,000 and integral multiples thereof. Each Exchange
Certificate shall be dated the date of its authentication.
(b) Initial Certificates offered and sold in reliance on Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), or any
successor regulation thereto ("Rule 144A") shall be issued initially in the form
of a single global Certificate in definitive, fully registered form without
interest coupons, substantially in the form set forth as Exhibit A hereto (the
"Restricted Global Certificate"), duly executed and authenticated by the Trustee
as hereinafter provided. The Restricted Global Certificate will be registered in
the name of a nominee for DTC for credit to the account of members of, or
participants in, DTC ("DTC Participants") or to the account of indirect
participants that clear through or maintain a custodial relationship with a DTC
Participant, either directly or indirectly ("Indirect Participants") and
deposited with the Trustee, as custodian for DTC. The aggregate principal amount
of the Restricted Global Certificate may from time to time be increased or
decreased by adjustments made on the records of DTC or its nominee, or of the
Trustee, as custodian for DTC or its nominee, as hereinafter provided.
(c) Initial Certificates offered and sold in offshore transactions in
reliance on Regulation S under the Securities Act or any successor regulation
thereto ("Regulation S") shall be issued initially in the form of a single
global Certificate in definitive, fully registered form without interest
coupons, substantially in the form set forth as Exhibit A hereto (the
"Regulation S Global Certificate") duly executed and authenticated by the
Trustee as hereinafter provided. The Regulation S Global Certificate will be
registered in the name of a nominee for DTC for credit to the accounts of
Euroclear Bank S.A./N.V. ("Euroclear") or Clearstream Banking, societe anonyme
("Clearstream") and deposited with the Trustee as custodian for DTC. At any time
prior to the 40th day after the later of the commencement of the offering of the
Initial Certificates and the date of the initial issuance (the "Issuance Date")
of the Initial Certificates (the "Distribution Compliance Expiration Date")
beneficial interest in the Regulation S Global Certificates representing the
Initial Certificates may be held only through Euroclear or Clearstream. The
aggregate principal amount of the Regulation S Global Certificate may from time
to time be increased or decreased by adjustments made on the records of DTC or
its nominee, or of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided. The Restricted Global Certificate and the Regulation S
Global Certificate are sometimes referred to as the "Global Certificates".
(d) The initial Class G Certificates and all other Initial Certificates
offered and sold to an institutional investor that is an "accredited investor"
within the meaning set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act ("Institutional Accredited Investor") shall be issued
in the form of permanent certificated Certificates in registered form in
substantially the form set forth as Exhibit A hereto (the "U.S. Definitive
Certificates"). The Class G Certificates issued pursuant to Section 4.05(b) in
exchange for interest in the Regulation
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S Global Certificates shall be issued in the form of permanent certificated
Certificates in registered form in substantially the form set forth as Exhibit A
hereto (the "Regulation S Definitive Certificates"). The Regulation S Definitive
Certificates and the U.S. Definitive Certificates are sometimes collectively
herein referred to as the "Definitive Initial Certificates".
(e) The Definitive Initial Certificates shall be in fully registered
form and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Definitive Initial Certificates, as
evidenced by their execution of such Definitive Initial Certificates.
(f) The Exchange Certificates shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each, a
"Global Exchange Certificate"), except that (i) the Restricted Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates shall
contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature of
the Exchange Certificates as the Responsible Officer of the Trustee executing
such Exchange Certificates on behalf of the Trust may determine, as evidenced by
such officer's execution on behalf of the Trust of such Exchange Certificates.
Such Global Exchange Certificates shall be in registered form and be registered
in the name of a nominee for DTC and deposited with the Trustee, at its
Corporate Trust Office, as custodian for DTC. The aggregate principal amount of
any Global Exchange Certificate may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC for such
Global Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate.
Section 4.02 Restrictive Legends. (a) Subject to Section 4.03, unless
and until (i) an Initial Certificate is sold under an effective Shelf
Registration Statement or (ii) an Initial Certificate is exchanged for an
Exchange Certificate pursuant to an effective Exchange Offer Registration
Statement, in each case as provided for in the Registration Rights Agreement,
each Global Certificate (other than the Regulation S Global Certificate after
the Distribution Compliance Expiration Date) and each U.S. Definitive
Certificate shall bear a legend to the following effect (the "Restricted
Legend") on the face thereof, unless the Company and the Trustee determine
otherwise consistent with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS
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CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION
OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (B) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR
MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) AGREES THAT PRIOR TO SUCH
TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), IT WILL
FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IS A
PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND IF REQUESTED, DELTA AIR LINES, INC.,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT
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SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE CERTIFICATES
PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY TRANSFER OF THE CERTIFICATES
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Certificate and the Global Exchange Certificate shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(c) Each Class G Certificate shall bear the following legend on the
face thereof:
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO ASSETS
OF A PLAN OR ANY TRUST ESTABLISHED WITH RESPECT TO A PLAN HAVE BEEN USED TO
ACQUIRE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND
HOLDING OF THIS CERTIFICATE OR INTEREST HEREIN BY SUCH A PERSON ARE EXEMPT
FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE OR
MATERIALLY SIMILAR PROVISIONS OF SIMILAR LAW PURSUANT TO ONE OR MORE
PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. CERTAIN
TERMS USED IN THIS PARAGRAPH SHALL HAVE THE MEANINGS SPECIFIED IN THE
AGREEMENT.
Section 4.03 Book-Entry Provisions for Restricted Global Certificates
and Regulation S Global Certificates. (a) DTC Participants shall have no rights
under this Agreement with respect to any Global Certificate held on their behalf
by DTC, or the Trustee as
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its custodian, and DTC may be treated by the Trustee and any agent of the
Trustee as the absolute owner of such Global Certificate for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Trustee or any agent of the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or shall impair, as
between DTC and its DTC Participants, the operation of customary practices
governing the exercise of the rights of a holder of any Class G Certificate.
Upon the issuance of any Global Certificate, the Registrar or its duly appointed
agent shall record a nominee of DTC as the registered holder of such Global
Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers
of such Global Certificate in whole, but not in part, to nominees of DTC, its
successor or such successor's nominees. Beneficial interests in the Restricted
Global Certificate and the Regulation S Global Certificate may be transferred in
accordance with the rules and procedures of DTC and the provisions of Section
4.04. Beneficial interests in the Restricted Global Certificate or a Regulation
S Global Certificate shall be delivered to all beneficial owners thereof in the
form of U.S. Definitive Certificates or Regulation S Definitive Certificates, as
the case may be, if (i) DTC notifies the Trustee in writing that it is no longer
willing or able to discharge properly its responsibilities as depositary for the
Restricted Global Certificates or the Regulation S Global Certificate, as the
case may be, and a successor depositary is not appointed by the Trustee within
90 days of such notice, (ii) the Company, at its option, advises the Trustee in
writing that it elects to terminate the book-entry system through DTC or (iii)
after the occurrence and during the continuance of an Event of Default, Class G
Certificateholders with Fractional Undivided Interests aggregating not less than
a majority in interest in the Class G Trust advise the Trustee, the Company and
DTC through DTC Participants in writing that the continuation of a book-entry
system through DTC (or a successor thereto) is no longer in the Class G
Certificateholders' best interests. Neither the Company nor the Trustee shall be
liable if the Company or the Trustee is unable to locate a qualified successor
clearing system.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of the entire amount of the
Restricted Global Certificate or Regulation S Global Certificate to the
beneficial owners thereof pursuant to paragraph (b) of this Section 4.03, such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Trustee shall execute, authenticate and deliver, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, an
equal aggregate principal amount of U.S. Definitive Certificates or Regulation S
Definitive Certificates, as the case may be, of authorized denominations. None
of the Company, the Registrar, the Paying Agent nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such registration instructions. Upon the
issuance of Definitive Initial
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Certificates, the Trustee shall recognize the Person in whose name the
Definitive Initial Certificates are registered in the Register as
Certificateholders hereunder.
(e) Any Definitive Initial Certificate delivered in exchange for an
interest in the Restricted Global Certificate or the Regulation S Global
Certificate, as the case may be, pursuant to paragraph (b) of this Section 4.03
shall, except as otherwise provided by paragraph (f) of Section 4.04, bear the
Restricted Legend.
(f) The registered holder of the Restricted Global Certificate or the
Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including DTC Participants and Persons that may hold interests through
DTC Participants, to take any action which a Holder is entitled to take under
this Agreement or the Class G Certificates.
Section 4.04 Special Transfer Provisions. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement, or
(ii) an Initial Certificate is exchanged for an Exchange Certificate pursuant to
an effective Exchange Offer Registration Statement, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply to such
Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Class G Certificate to any Institutional Accredited
Investor which is not a qualified institutional buyer ("QIB"), as defined in
Rule 144A (excluding transfers to or by Persons who are not "U.S. Persons," as
defined in Regulation S, such Person being referred to as "Non-U.S. Persons"):
(i) The Registrar shall register the transfer of any Class G
Certificate, whether or not such Class G Certificate bears the Restricted
Legend, if (x) the requested transfer is after the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) or (y) the proposed transferee
furnishes to the Trustee a signed letter of representations and agreements
relating to the restrictions on transfer of the Certificates, substantially
in the form of Exhibit C hereto, and the aggregate principal amount of the
Class G Certificates being transferred is at least $100,000.
(ii) If the proposed transferor is a DTC Participant holding a
beneficial interest in the Restricted Global Certificate, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
of the transfer and a decrease in the principal amount of such Restricted
Global Certificate in an amount equal to the principal amount of the
beneficial interest in such Restricted Global Certificate to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver to the transferor or at its direction, one or more
U.S. Definitive Certificates of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Certificate
to a QIB (excluding Non-U.S. Persons):
11
(i) If the Initial Certificate to be transferred consists of U.S.
Definitive Certificates or an interest in a Regulation S Global Certificate
prior to the Distribution Compliance Date, the Registrar shall register the
transfer, if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Initial Certificate stating, or has otherwise advised the Trustee and the
Registrar in writing, that it is purchasing the Initial Certificate for its
own account or an account with respect to which it exercises sole
investment discretion and that it, or the Person on whose behalf it is
acting with respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Trust and/or the Company as it has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is a DTC Participant and the Initial
Certificate to be transferred consists of U.S. Definitive Certificates,
upon receipt by the Registrar of the documents referred to in clause (i)
above and instructions given in accordance with DTC's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date of such transfer and an increase in the principal amount of the
Restricted Global Certificate in an amount equal to the principal amount of
the U.S. Definitive Certificates being transferred, and the Trustee shall
cancel such U.S. Definitive Certificates so transferred.
(c) Transfers of Interests in the Regulation S Global Certificate or
Regulation S Definitive Certificates. The Registrar shall register any transfer
of interests in the Regulation S Global Certificate or Regulation S Definitive
Certificates any time after the Distribution Compliance Expiration Date without
requiring any additional certification.
(d) Transfers to Non-U.S. Persons at any Time. The following provisions
shall apply with respect to any registration of any transfer of an Initial
Certificate to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any Non-U.S.
Person if the Initial Certificate to be transferred is a U.S. Definitive
Certificate or an interest in the Restricted Global Certificate, upon
receipt of a certificate substantially in the form of Exhibit B from the
proposed transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(ii) (A) If the proposed transferor is a DTC Participant holding a
beneficial interest in a Restricted Global Certificate, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions in accordance with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date of such transfer
and a decrease in the principal amount of such Restricted Global
Certificate in an amount equal to the principal amount of the beneficial
interest in such
12
Restricted Global Certificate to be transferred, and (B) if the proposed
transferee is a DTC Participant, upon receipt by the Registrar of
instructions given in accordance with DTC's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Regulation S Global Certificate in
an amount equal to the principal amount of the U.S. Definitive Certificate
or the Restricted Global Certificate, as the case may be, to be
transferred, and the Trustee shall cancel the U.S. Definitive Certificate,
if any, so transferred or decrease the amount of such Restricted Global
Certificate.
(e) Restricted Legend. Upon the transfer, exchange or replacement of
Class G Certificates not bearing the Restricted Legend, the Registrar shall
deliver Class G Certificates that do not bear the Restricted Legend. Upon the
transfer, exchange or replacement of Class G Certificates bearing the Restricted
Legend, the Registrar shall deliver only Class G Certificates that bear the
Restricted Legend unless either (i) the circumstances contemplated by paragraph
(a)(i)(x) of this Section 4.04 exist or (ii) there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(f) General. By its acceptance of any Class G Certificate bearing the
Restricted Legend, each Holder of such a Class G Certificate acknowledges the
restrictions on transfer of such Class G Certificate set forth in this Trust
Supplement and agrees that it will transfer such Class G Certificate only as
provided in this Trust Supplement. The Registrar shall not register a transfer
of any Class G Certificate unless such transfer complies with the restrictions
on transfer of such Class G Certificate set forth in this Trust Supplement. In
connection with any transfer of Class G Certificates, each Class G
Certificateholder agrees by its acceptance of the Class G Certificates to
furnish the Registrar or the Trustee such certifications, legal opinions or
other information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act and in
accordance with the terms and provisions of this Article IV; provided that the
Registrar shall not be required to determine the sufficiency of any such
certifications, legal opinions or other information.
Until such time as no Class G Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to this Section 4.04. The Trustee, if not the
Registrar at such time, shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
ARTICLE V
[RESERVED]
13
ARTICLE VI
DISTRIBUTION; STATEMENTS TO CERTIFICATEHOLDER
Section 6.01 Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Trustee will include with
each distribution to the Class G Certificateholders a statement, giving effect
to the distribution to be made on such Regular Distribution Date or Special
Distribution Date, and, except to the extent otherwise provided in the
applicable Trust Supplement, setting forth the following information (per $1,000
aggregate face amount of Class G Certificates as to (ii) and (iii) below):
(i) the aggregate amount of funds distributed on such Distribution
Date, indicating the amount allocable to each source (including any portion
thereof paid by any Liquidity Provider and/or the Policy Provider);
(ii) the amount of such distribution allocable to principal and the
amount allocable to Break Amount (if any) and Make-Whole Amount (if any);
(iii) the amount of such distribution allocable to interest;
(iv) the Pool Balance and the Pool Factor; and
(v) the LIBOR rates (as determined by the Reference Agent) and the
resulting interest rates payable on the Class G Certificates for the
current and immediately preceding Interest Periods.
With respect to the Class G Certificates registered in the name of DTC
or its nominee, on the Record Date prior to each Regular Distribution Date and
Special Distribution Date, the Trustee will request from the Clearing Agency a
securities position listing setting forth the names of all the DTC Participants
reflected on DTC's books as holding interests in the Class G Certificates on
such Record Date. On each Regular Distribution Date and Special Distribution
Date, the Trustee will mail to each such Direct Participant whose name has been
provided by DTC the statement described above and will make available additional
copies as requested by such DTC Participants for forwarding to holders of the
Class G Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a Class G
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii) and (a)(iii) above for such
calendar year or, in the event such Person was a Class G Certificateholder of
record during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
which a Class G Certificateholder may reasonably request as necessary for the
purpose of such Certificateholder's preparation of its federal income tax
returns or foreign income tax returns. With respect to Class G Certificates
registered in the name of DTC or its nominee, such statement and such other
items shall be prepared on the basis of information supplied to the Trustee by
the DTC Participants and shall be delivered by the Trustee to such DTC
Participants to be available for forwarding by such DTC Participants to the
holders of interests in the Class G Certificates.
14
(c) The provisions of this Section 6.01 supersede and replace the
provisions of Section 4.03 of the Basic Agreement in their entirety with respect
to Class G Trust.
ARTICLE VII
DEFAULT
Section 7.01 Purchase Rights of Certificateholders. (a) By acceptance
of its Class G Certificate, each Class G Certificateholder agrees that at any
time after the occurrence and during the continuation of a Triggering Event,
(i) unless the Policy Provider has purchased or given notice of its
election to purchase the Class G Certificates, each Class C
Certificateholder (other than the Initial Class C Holder, the Company or
any of its Affiliates) shall have the right to purchase all, but not less
than all, of the Class G Certificates upon ten days' prior written notice
to the Trustee and each other Class C Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class C
Certificateholder (other than the Company or any of its Affiliates)
notifies such purchasing Class C Certificateholder that such other Class C
Certificateholder wants to participate in such purchase, then such other
Class C Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the Class G
Certificates pro rata based on the Fractional Undivided Interest in the
Class C Trust held by each such Class C Certificateholder and (B) if prior
to the end of such ten-day period any other Class C Certificateholder fails
to notify the purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the Class
G Certificates pursuant to this Section 7.01(a)(i); and
(ii) unless the Policy Provider has purchased or given notice of its
election to purchase the Class G Certificates, each Class D
Certificateholder (other than the Initial Class D Holder, the Company or
any of its Affiliates) shall have the right (which shall not expire upon
any purchase of the Class G Certificates pursuant to clause (i) above) to
purchase all, but not less than all, of the Class G Certificates and the
Class C Certificates upon ten days' prior written notice to the Trustee,
the Class C Trustee and each other Class D Certificateholder, provided that
(A) if prior to the end of such ten-day period any other Class D
Certificateholder (other than the Company or any of its Affiliates)
notifies such purchasing Class D Certificateholder that such other Class D
Certificateholder wants to participate in such purchase, then such other
Class D Certificateholder may join with the purchasing Class D
Certificateholder to purchase all, but not less than all, of the Class G
Certificates and the Class C Certificates pro rata based on the Fractional
Undivided Interest in the Class D Trust held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Class G Certificates and the Class C
Certificates pursuant to this Section 7.01(a)(ii); and
15
(iii) whether or not any Class C or Class D Certificateholders have
exercised their purchase rights pursuant to paragraphs (i) or (ii) above,
the Policy Provider (except in the event of a Policy Provider Default), if
it is then the Controlling Party, shall have the right to purchase all, but
not less than all, of the Class G Certificates upon ten days' written
notice to the Trustee and the holders of the Class G Certificates.
The purchase price with respect to the Class G Certificates shall be
equal to the Pool Balance of the Class G Certificates, together with accrued and
unpaid interest in respect thereof to the date of such purchase, Break Amount
(if any), and any other amounts then due and payable to the Class G
Certificateholders under this Agreement, the Intercreditor Agreement, any Series
G Equipment Note held as the property of the Class G Trust or the related
Indenture and Participation Agreement or on or in respect of the Class G
Certificates but without any Make-Whole Amount, provided, however, that if such
purchase occurs after the Record Date relating to any Distribution Date, such
purchase price shall be reduced by the amount to be distributed hereunder on
such related Distribution Date (which deducted amounts shall remain
distributable to, and may be retained by, the Class G Certificateholders as of
such Record Date); provided further that no such purchase of Class G
Certificates pursuant to this Section 7.01(a) shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is purchasing, pursuant to the terms of this
Agreement, the Class C Trust Agreement, the Class D Trust Agreement and the
Intercreditor Agreement, all of the Class G Certificates and the Class C
Certificates that are senior to the securities held by such purchaser(s),
subject to the purchase rights of the Policy Provider provided in Section
7.01(a)(iii) hereof. Each payment of the purchase price of the Class G
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 7.01(a). Each Class G Certificateholder
agrees by its acceptance of its Certificate that it will, upon payment from such
Class C Certificateholder(s), Class D Certificateholder(s) or the Policy
Provider, as the case may be, of the purchase price set forth in the first
sentence of this paragraph, forthwith sell, assign, transfer and convey to the
purchaser(s) thereof (without recourse, representation or warranty of any kind
except as to its own acts) all of the right, title, interest and obligation of
such Class G Certificateholder in this Agreement, the Intercreditor Agreement,
the Policy, the Policy Provider Agreement, each Liquidity Facility, the Note
Documents and all Class G Certificates held by such Class G Certificateholder
(excluding all right, title and interest under any of the foregoing to the
extent such right, title or interest is with respect to an obligation not then
due and payable as respects any action or inaction or state of affairs occurring
prior to such sale) and the purchaser(s) shall assume all of such Class G
Certificateholder's obligations under this Agreement, the Intercreditor
Agreement, the Policy, the Policy Provider Agreement, each Liquidity Facility,
the Note Documents and all such Class G Certificates. The Class G Certificates
will be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of any Class G Certificateholder to deliver any
Class G Certificate and, upon such a purchase, (i) the only rights of the Class
G Certificateholders will be to deliver the Class G Certificates and (ii) if the
purchaser(s) shall so request, each such Class G Certificateholder will comply
with all the provisions of Section 3.04 of the Basic Agreement and the
applicable provisions of this Trust Supplement to enable new Class G
Certificates to be issued to the purchaser(s) in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Class G Certificates shall be borne by the purchaser(s) thereof.
16
(b) This Section 7.01 supplements and, to the extent inconsistent with
any provision of Section 6.01(a) of the Basic Agreement, replaces the provisions
of Section 6.01(a) of the Basic Agreement. Notwithstanding anything to the
contrary set forth herein or in any Operative Agreement, the provisions of this
Section 7.01 may not be amended in any manner without the consent of each Class
G Certificateholder, Class C Certificateholder or Class D Certificateholder (in
each case, other than the Company or any of its Affiliates) that would be
adversely affected thereby, or the Policy Provider, if it would be adversely
affected thereby.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.01 Supplemental Agreements. (a) For purposes of the Class G
Trust only, the following provisions of the Basic Agreement shall be amended as
provided below.
(i) Section 7.09(b) of the Basic Agreement shall be amended by
inserting the phrase "the Policy Provider," immediately after each
reference to "the Company" therein.
(ii) Section 9.01 of the Basic Agreement shall be amended by adding the
phrase "but with, in the case of subparagraphs (2), (4), (5), (7) and (13)
below, the consent of the Policy Provider" immediately after the phrase
"Without the consent of any Certificateholders,".
(iii) Section 9.01 of the Basic Agreement shall be amended by adding
the phrase "the Policy, the Policy Provider Agreement, the Reference Agency
Agreement," after each reference to "Intercreditor Agreement" therein
(except for the second such reference in subparagraph (7) thereof).
(iv) Section 9.02 of the Basic Agreement shall be amended by (A) adding
the phrase "and upon the prior written consent of the Policy Provider"
immediately after the phrase "by Direction of said Certificateholders
delivered to the Company and the Trustee," appearing in the fifth line
thereof and (B) by adding the phrase "the Policy Provider and" immediately
after the phrase "provided, however, that no such agreement shall, without
the consent of" appearing in the 13th line thereof.
(v) Section 9.02 of the Basic Agreement shall be amended by (i) adding
the phrase "the Policy, the Policy Provider Agreement, the Reference Agency
Agreement," after each reference to "Intercreditor Agreement" therein
(except for such reference in subparagraph (3) thereof) and (ii) adding the
following as subparagraph (6) thereof:
"(6) terminate or modify the Policy."
(vi) Section 9.04 of the Basic Agreement shall be amended by inserting
the phrase "(which opinion shall also be addressed to the Policy Provider)"
immediately before the period at the end of such Section.
17
(vii) Section 10.01 of the Basic Agreement shall be amended by
inserting at the beginning of the second sentence thereof the phrase
"Subject to Section 8.01(b) of the Intercreditor Agreement (as defined in
Trust Supplement No. 2003-1G dated as of January 30, 2003),".
(b) The Trustee agrees to send to S&P (at its address at 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 10041-0003, Attention: Xxxxxx X.
Xxxxxxxx, or such other address as S&P may notify the Trustee) and the
Policy Provider (at its address specified in the Intercreditor Agreement) a
copy of each notice, statement, report or other written communication sent
by the Trustee to each Class G Certificateholder.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the Class G
Trust created hereby shall terminate upon the distribution to all Class G
Certificateholders and the Trustee of all amounts required to be distributed to
them pursuant to this Agreement and the disposition of all property held as part
of the Trust Property; provided, however, that in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, Xx., the father of Xxxx
X. Xxxxxxx, former President of the United States, living on the date of this
Trust Supplement.
Section 9.02 Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 9.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CLASS G CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.04 Counterparts. This Trust Supplement may be executed in any
number of counterparts (and each of the parties shall not be required to execute
the same counterpart). Each counterpart of this Trust Supplement including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Trust Supplement, but all of such counterparts
together shall constitute one instrument.
Section 9.05 Intention of Parties. The parties hereto intend that the
Class G Trust be classified for United States federal income tax purposes as a
grantor trust under Subpart E, Part I, Subchapter J, Chapter 1 of Subtitle A of
the Internal Revenue Code of 1986, as amended, and not as a trust or association
taxable as a corporation or as a partnership. Each
18
Certificateholder of a Class G Certificate, by its acceptance of its Class G
Certificate or a beneficial interest therein, agrees to treat the Class G Trust
as a grantor trust for all United States federal, state and local income tax
purposes. The Trustee shall not be authorized or empowered to do anything that
would cause the Class G Trust to fail to qualify as a grantor trust for such tax
purposes (including as subject to this restriction, acquiring any Aircraft by
bidding the Equipment Notes relating thereto or otherwise, or taking any action
with respect to any such Aircraft once acquired).
Section 9.06 Third Party Beneficiary. The parties hereto agree and
acknowledge that the Policy Provider shall be a third party beneficiary of the
provisions of Section 7.01 of this Trust Supplement providing for the Policy
Provider's purchase rights as stated therein.
19
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to be
duly executed by their respective officers thereto duly authorized as of the
date first written above.
DELTA AIR LINES, INC.
By:
---------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Name:
Title:
20
EXHIBIT A to
TRUST SUPPLEMENT NO. 2003-1G
FORM OF CERTIFICATE
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) AGREES
THAT PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER
AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A
U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND IF REQUESTED, DELTA AIR LINES, INC., SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY
TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.](1)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
--------
(1) To be included on the face of each Global Certificate (other than the
Regulation S Global Certificate after the Distribution Compliance
Expiration Date) and each U.S. Definitive Certificate.
A-2
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.](2)
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO
ASSETS OF A PLAN OR ANY TRUST ESTABLISHED WITH RESPECT TO A PLAN HAVE
BEEN USED TO ACQUIRE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR INTEREST HEREIN BY SUCH A
PERSON ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA
AND THE CODE OR MATERIALLY SIMILAR PROVISIONS OF SIMILAR LAW PURSUANT
TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE
EXEMPTIONS. CERTAIN TERMS USED IN THIS PARAGRAPH SHALL HAVE THE
MEANINGS SPECIFIED IN THE AGREEMENT.
--------
(2) This legend to appear on Book-Entry Certificates to be deposited with
The Depositary Trust Company.
A-3
[GLOBAL CERTIFICATE](3)
DELTA AIR LINES PASS THROUGH TRUST 2003-1G
DELTA AIR LINES [INITIAL] [EXCHANGE] PASS THROUGH CERTIFICATE, SERIES 2003-1G
Final Expected Regular Distribution Date: January 25, 2008
evidencing a fractional undivided interest in the Trust, the
property of which includes or will include, among other
things, certain Equipment Notes each secured by an Aircraft
owned by Delta Air Lines, Inc.
Certificate No. ______ $____________ Fractional Undivided
Interest representing [ ]% of the CUSIP No. _______
Trust per $1,000 face amount
THIS CERTIFIES THAT ________, for value received, is the registered
owner of a $______ (______ dollars) Fractional Undivided Interest [or such
greater or lesser amounts as shall be the aggregate outstanding face amount
hereof as set forth in the records of the Trustee]* (the "Reference Principal
Amount") in the Delta Air Lines Pass Through Trust, Series 2003-1G (the "Trust")
created by U.S. BANK TRUST NATIONAL ASSOCIATION, as successor trustee (the
"Trustee") under a Pass Through Trust Agreement, dated as of November 16, 2000
(the "Basic Agreement"), between State Street Bank and Trust Company of
Connecticut, National Association and Delta Air Lines, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No. 2003-1G
thereto dated as of January 30, 2003 (collectively, the "Agreement"), between
the Trustee and the Company, a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "Delta Air Lines [Initial] [Exchange] Pass Through Certificates,
Series 2003-1G" (herein called the "Certificates"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement.
By virtue of its acceptance hereof, the Certificateholder of this Certificate
assents to and agrees to be bound by all of the provisions of the Agreement and
the Intercreditor Agreement, including the subordination provisions of Section
9.09 of the Intercreditor Agreement. The property of the Trust includes certain
Equipment Notes and all rights of the Trust and the Trustee, on behalf of the
Trust, to receive any payments under the Intercreditor Agreement, the Policy and
the Liquidity Facilities (the "Trust Property"). Each issue of the Equipment
Notes is secured by, among other things, a security interest in the Aircraft
owned by the Company.
-------------
(3) To be included on the face of each Global Certificate.
* To be included in Global Certificates for Initial Certificates.
A-4
The Certificates represent Fractional Undivided Interests in the Trust
and the Trust Property, and will have no rights, benefits or interest in respect
of any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each January 25, April 25, July 25 and October 25 (each, a
"Regular Distribution Date"), commencing on April 25, 2003, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution Date,
the receipt of which has been confirmed by the Trustee, equal to the product of
the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and the Intercreditor Agreement, in the event that
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day and
interest shall accrue during the intervening period. The Trustee shall mail
notice of each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
[The Holder of this Certificate is entitled to the benefits of the
Registration Rights Agreement, dated as of January 30, 2003, among the Company,
the Trustee and the Initial Purchasers named therein (the "Registration Rights
Agreement"). Subject to the terms of the Registration Rights Agreement, in the
event that neither the consummation of the Exchange Offer nor the declaration by
the Commission of a Shelf Registration to be effective (a "Registration Event")
occurs on or prior to the 270th day after January 30, 2003, the interest rate
per annum borne by the Certificates shall be increased by 0.25%, from and
including such 270th day, to but excluding the date on which a Registration
Event occurs. In the event that the Shelf Registration Statement ceases to be
effective at any time during the period specified by the Registration Rights
Agreement for more than 60 days, whether or not consecutive, during any 12-month
period, the interest rate per annum borne by the Certificates shall be increased
by 0.25% from the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until such time as the Shelf
Registration Statement again becomes effective.]4
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with respect
to Certificates registered on the Record Date in
-------------
(4) To be included only on each Initial Certificate.
A-5
the name of a Clearing Agency (or its nominee), such distributions shall be made
by wire transfer. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after notice mailed by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company, the Trustee or any
Loan Trustee or any Affiliate thereof. The Certificates are limited in right of
payment, all as more specifically set forth on the face hereof and in the
Agreement. All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent that
the Trustee shall have sufficient income or proceeds from the Trust Property to
make such payments in accordance with the terms of the Agreement. Each
Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Trust Property to the
extent available for any payment or distribution to such Certificateholder
pursuant to the terms of the Agreement and that it will not have any recourse to
the Company, the Trustee or the Loan Trustees except as otherwise expressly
provided in the Agreement, in any Note Document or in the Intercreditor
Agreement. This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby.
A copy of the Agreement may be examined during normal business hours at the
principal office of the Trustee, and at such other places, if any, designated by
the Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
A-6
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of [$100,000]5 [$1,000]6 Fractional Undivided
Interest and multiples of $1,000 in excess thereof except that one Certificate
may be issued in a different denomination. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Company, the Trustee, the Registrar and any Paying Agent shall deem
and treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Company, the Trustee, the Registrar or
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to represent and
warrant to the Company, the Loan Trustees and the Trustee that either: (i) no
assets of a Plan or any trust established with respect to a Plan, have been used
to purchase this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or interest herein by such Person are exempt from
the prohibited transaction restrictions of ERISA and the Code or materially
similar provisions of Similar Law pursuant to one or more prohibited transaction
statutory or administrative exemptions.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
-------------
(5) To be included only on each Initial Certificate.
(6) To be included on each Exchange Certificate.
A-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
DELTA AIR LINES PASS THROUGH TRUST 2003-1G
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Title:
Dated:
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------
Authorized Officer
A-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
Please print or typewrite name and address including zip code of assignee
----------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________ attorney to
transfer said Certificate on the books of the Trustee with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES OTHER
THAN EXCHANGE CERTIFICATES, REGULATION S DEFINITIVE CERTIFICATES
AND AFTER THE DISTRIBUTION COMPLIANCE EXPIRATION DATE, REGULATION S
GLOBAL CERTIFICATES]
In connection with any transfer of this Certificate occurring prior to
the date which is the earlier of (i) the date the shelf registration statement
is declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Certificate and the Agreement.
A-9
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Certificate in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 4.04 of the Trust Supplement shall
have been satisfied.
Date:
-------------------- -----------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
SIGNATURE GUARANTEE:
-------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Certificate for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
-------------------
------------------------------------------------
NOTICE: To be executed by an executive officer
A-10
EXHIBIT B to
TRUST SUPPLEMENT NO. 2003-1G
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[Date]
U.S. Bank Trust National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Attention: Corporate Trust Department
Re: Delta Air Lines Inc.
Pass Through Trust 2003-1G (the "Trust"),
Delta Air Lines Pass Through Certificates, Series 2003-1G
Ladies and Gentlemen:
In connection with our proposed sale of $_____ Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting
on our behalf knows that the transaction has been pre-arranged with a buyer
in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case
may be.
You and Delta Air Lines, Inc. are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
EXHIBIT C to
TRUST SUPPLEMENT NO. 2003-1G
FORM OF ACCREDITED INVESTOR LETTER
U.S. Bank Trust National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Delta Air Lines, Inc.
Xxxxxxxxxx Atlanta International Airport
Xxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with our proposed purchase of Delta Air Lines Pass
Through Certificates, Series 2003-1G (the "Certificates") we confirm that:
1. We understand that any subsequent transfer of the Certificates
is subject to certain restrictions and conditions set forth in
the Pass Through Trust Agreement between Delta Air Lines, Inc.
(the "Company") and U.S. Bank Trust National Association as
successor trustee (the "Trustee"), as supplemented by Trust
Supplement No. 2003-1G thereto, relating to the Certificates,
and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with,
such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We are purchasing Certificates having an aggregate principal
amount of not less than $100,000 and each account (if any) for
which we are purchasing Certificates is purchasing
Certificates having an aggregate principal amount of not less
than $100,000.
3. We understand that the Certificates have not been registered
under the Securities Act, that the Certificates are being sold
to us in a transaction that is exempt from the registration
requirements of the Securities Act and that the Certificates
may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated,
that, if we should sell any Certificates within the applicable
time period referred to in Rule 144(k) of the Securities Act,
we will do so only (A) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as
defined therein), (B) inside the United States to an
Institutional Accredited Investor (as defined below) acquiring
$100,000 or more aggregate principal amount of such
Certificates that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the
Certificates (the form of which letter can be obtained from
the Trustee), (C) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (D)
pursuant
to the exemption from registration provided by Rule 144 under
the Securities Act (if available) or (E) pursuant to a
registration statement which has been declared effective under
the Securities Act (and which continues to be effective at the
time of such transfer), and we further agree to provide any
person purchasing any of the Certificates from us a notice
advising such purchaser that resales of the Certificates are
restricted as stated herein.
4. We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Company
and to the Trustee such certificates, legal opinions and other
information as the Company and the Trustee may reasonably
require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the
Certificates purchased by us will bear a legend to the
foregoing effect.
5. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) ("Institutional Accredited Investor") and have
such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of
our investment in the Certificates, and we and any accounts
for which we are acting are each able to bear the economic
risk of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an
Institutional Accredited Investor) as to each of which we
exercise sole investment discretion.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
---------------------------------
Name:
Title:
Securities to be Purchased:
$ principal amount
C-2
EXHIBIT D to
TRUST SUPPLEMENT NO. 2003-1G
DTC LETTER OF REPRESENTATIONS
[INTENTIONALLY OMITTED]
N3760C
-------------------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-IG
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULE PRINCIPAL
PAYMENT DATE PAYMENTS
------------ ------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 0.00
January 25, 2004 1,107,117.84
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 0.00
January 25, 2005 1,881,880.19
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 0.00
January 25, 2006 1,027,880.76
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 0.00
January 25, 2007 1,749,818.43
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 0.00
January 25, 2008 16,150,787.91
N3761R
-------------------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 0.00
January 25, 2004 1,107,117.84
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 0.00
January 25, 2005 1,881,880.19
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 0.00
January 25, 2006 1,027,880.76
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 0.00
January 25, 2007 1,749,818.43
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 0.00
January 25, 2008 16,150,787.91
I-A-2
N193DN
----------------------------------------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 707,055.82
October 25, 2003 1,339,010.88
January 25, 2004 0.00
April 25, 2004 0.00
July 25, 2004 1,040,999.31
October 25, 2004 1,290,022.67
January 25, 2005 0.00
April 25, 2005 0.00
July 25, 2005 992,011.11
October 25, 2005 1,241,034.47
January 25, 2006 0.00
April 25, 2006 0.00
July 25, 2006 943,022.90
October 25, 2006 1,192,046.27
January 25, 2007 0.00
April 25, 2007 0.00
July 25, 2007 894,034.70
October 25, 2007 1,143,058.06
January 25, 2008 19,217,751.61
I-A-3
N194DN
---------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
---------------- -------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 2,439,498.38
January 25, 2004 0.00
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 2,341,098.45
January 25, 2005 0.00
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 2,242,698.51
January 25, 2006 0.00
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 2,144,298.58
January 25, 2007 0.00
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 2,045,898.64
January 25, 2008 19,302,986.85
I-A-4
N195DN
----------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 2,439,498.38
January 25, 2004 0.00
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 2,341,098.45
January 25, 2005 0.00
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 2,242,698.51
January 25, 2006 0.00
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 2,144,298.58
January 25, 2007 0.00
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 2,045,898.64
January 25, 2008 19,302,986.85
I-A-5
N196DN
-------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 1,098,625.74
January 25, 2004 1,349,622.63
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 1,049,249.30
January 25, 2005 1,300,246.20
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 999,872.87
January 25, 2006 1,250,869.76
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 950,496.43
January 25, 2007 1,201,493.32
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 901,119.99
January 25, 2008 20,526,133.10
I-A-6
N197DN
-------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 0.00
October 25, 2003 0.00
January 25, 2004 2,463,181.70
April 25, 2004 0.00
July 25, 2004 0.00
October 25, 2004 0.00
January 25, 2005 2,363,826.47
April 25, 2005 0.00
July 25, 2005 0.00
October 25, 2005 0.00
January 25, 2006 2,264,471.24
April 25, 2006 0.00
July 25, 2006 0.00
October 25, 2006 0.00
January 25, 2007 2,165,116.01
April 25, 2007 0.00
July 25, 2007 0.00
October 25, 2007 0.00
January 25, 2008 21,561,000.45
I-A-7
N198DN
-------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 1,669,849.99
July 25, 2003 0.00
October 25, 2003 0.00
January 25, 2004 1,115,902.20
April 25, 2004 1,370,846.15
July 25, 2004 0.00
October 25, 2004 0.00
January 25, 2005 1,065,749.29
April 25, 2005 1,320,693.24
July 25, 2005 0.00
October 25, 2005 0.00
January 25, 2006 1,015,596.38
April 25, 2006 1,270,540.33
July 25, 2006 0.00
October 25, 2006 0.00
January 25, 2007 965,443.48
April 25, 2007 1,220,387.43
July 25, 2007 0.00
October 25, 2007 0.00
January 25, 2008 21,772,070.51
I-A-8
N1611B
------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 1,009,892.08
July 25, 2003 1,477,572.84
October 25, 2003 0.00
January 25, 2004 0.00
April 25, 2004 1,213,995.47
July 25, 2004 734,237.81
October 25, 2004 0.00
January 25, 2005 0.00
April 25, 2005 1,888,964.64
July 25, 2005 2,127,620.93
October 25, 2005 0.00
January 25, 2006 0.00
April 25, 2006 1,113,872.13
July 25, 2006 1,368,352.28
October 25, 2006 0.00
January 25, 2007 0.00
April 25, 2007 1,063,810.46
July 25, 2007 1,318,290.61
October 25, 2007 0.00
January 25, 2008 26,195,384.93
I-A-9
N178DZ
-------------------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULE PRINCIPAL
PAYMENT DATE PAYMENTS
------------ ------------------
April 25, 2003 $ 1,009,892.08
July 25, 2003 1,477,572.84
October 25, 2003 0.00
January 25, 2004 0.00
April 25, 2004 1,213,995.47
July 25, 2004 734,237.81
October 25, 2004 0.00
January 25, 2005 0.00
April 25, 2005 1,188,964.64
July 25, 2005 2,127,620.93
October 25, 2005 0.00
January 25, 2006 0.00
April 25, 2006 1,113,872.13
July 25, 2006 1,368,352.28
October 25, 2006 0.00
January 25, 2007 0.00
April 25, 2007 1,063,810.46
July 25, 2007 1,318,290.61
October 25, 2007 0.00
January 25, 2008 26,195,384.93
I-A-10
N1612T
-------------------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULE PRINCIPAL
PAYMENT DATE PAYMENTS
------------ ------------------
April 25, 2003 $ 1,048,670.22
July 25, 2003 518,234.11
October 25, 2003 0.00
January 25, 2004 0.00
April 25, 2004 1,313,089.85
July 25, 2004 2,320,217.02
October 25, 2004 0.00
January 25, 2005 0.00
April 25, 2005 1,236,599.18
July 25, 2005 747,908.78
October 25, 2005 0.00
January 25, 2006 0.00
April 25, 2006 1,211,102.29
July 25, 2006 2,167,235.67
October 25, 2006 0.00
January 25, 2007 0.00
April 25, 2007 1,134,611.62
July 25, 2007 1,393,830.00
October 25, 2007 0.00
January 25, 2008 29,118,887.55
I-A-11
N1613B
----------------------------
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------ -------------------
April 25, 2003 $ 0.00
July 25, 2003 875,164.07
October 25, 2003 805,201.53
January 25, 2004 0.00
April 25, 2004 0.00
July 25, 2004 1,323,442.94
October 25, 2004 2,338,510.82
January 25, 2005 0.00
April 25, 2005 0.00
July 25, 2005 1,246,349.17
October 25, 2005 753,805.69
January 25, 2006 0.00
April 25, 2006 0.00
July 25, 2006 1,220,651.25
October 25, 2006 2,184,323.29
January 25, 2007 0.00
April 25, 2007 0.00
July 25, 2007 1,143,557.49
October 25, 2007 1,404,819.69
January 25, 2008 29,352,418.32
I-A-12
SCHEDULE I-B to
TRUST SUPPLEMENT NO. 2003-1G
AGGREGATE EQUIPMENT NOTE PRINCIPAL PAYMENTS
PAYMENT DATE SCHEDULED PRINCIPAL PAYMENTS
------------ ----------------------------
April 25, 2003 $ 4,738,304.37
July 25, 2003 5,055,599.68
October 25, 2003 8,121,834.91
January 25, 2004 7,142,942.21
April 25, 2004 5,111,926.94
July 25, 2004 6,153,134.89
October 25, 2004 9,359,979.69
January 25, 2005 8,493,582.34
April 25, 2005 4,935,221.70
July 25, 2005 7,241,510.92
October 25, 2005 7,480,110.05
January 25, 2006 6,586,698.90
April 25, 2006 4,709,386.88
July 25, 2006 7,067,614.38
October 25, 2006 8,615,463.15
January 25, 2007 7,831,689.67
April 25, 2007 4,482,619.97
July 25, 2007 6,068,003.41
October 25, 2007 7,540,795.02
January 25, 2008 264,846,580.92
SCHEDULE II to
TRUST SUPPLEMENT NO. 2003-1G
EQUIPMENT NOTES,
PRINCIPAL AMOUNTS, MATURITIES AND AIRCRAFT
PRINCIPAL AMOUNT OF AIRCRAFT REGISTRATION
EQUIPMENT NOTES MATURITY AIRCRAFT NUMBER
------------------- ---------------- -------------- ---------------------
$21,917,485.13 January 25, 2008 Boeing 737-832 N3760C
21,917,485.13 January 25, 2008 Boeing 737-832 N3761R
30,000,047.80 January 25, 2008 Boeing 767-332 N193DN
30,516,479.41 January 25, 2008 Boeing 767-332 N194DN
30,516,479.41 January 25, 2008 Boeing 767-332 N195DN
30,627,729.34 January 25, 2008 Boeing 767-332 N196DN
30,817,595.87 January 25, 2008 Boeing 767-332 N197DN
32,787,079.00 January 25, 2008 Boeing 767-332 N198DN
38,811,994.18 January 25, 2008 Boeing 767-332 N1611B
38,811,994.18 January 25, 2008 Boeing 767-332 N178DZ
42,210,386.29 January 25, 2008 Boeing 767-332 N1612T
42,648,244.26 January 25, 2008 Boeing 767-332 N1613B
SCHEDULE III to
TRUST SUPPLEMENT NO. 2003-1G
NOTE DOCUMENTS
Participation Agreement
Indenture and Security Agreement
For each of the aircraft listed in Schedule II.
